Wisconsin State Journal

Second thoughts on murder ruling
3/21/04
Dee J. Hall Wisconsin State Journal

The medical examiner in the 1998 murder and arson case against former Green Bay police officer John Maloney said Sunday he no longer has confidence in his ruling that Maloney's estranged wife was murdered.

Dr. Gregory Schmunk told the Wisconsin State Journal that key evidence was withheld from him that could have affected his ruling that Madison native Sandy Maloney's death was a homicide. On Sunday, he called for a re-opening of the investigation into the Feb. 10, 1998, death, which he ruled was caused by "strangulation/suffocation at the hands of another."

"Definitely it needs to be re-evaluated," said Schmunk, now chief forensic pathologist for the Stanislaus County (Calif.) Coroner's Office. "I think the Brown County medical examiner needs to re-open the investigation."

Brown County's acting chief medical examiner, Al Klimek, said he's willing to take a second look at the case if asked by Brown County District Attorney John Zakowski. Zakowski couldn't be reached Sunday.

"You always want to get it right," Klimek said. "If it (a re-evaluation) needs to be done, it needs to be done."

Schmunk said important evidence was withheld from him, including initial reports from the Green Bay Fire Department and the Brown County Arson Task Force that labeled the fire at Sandy Maloney's home an accident. Schmunk also said he was unaware of the victim's history of careless smoking and suicide notes written by the 40-year-old mother of three.

Schmunk, who left Green Bay after the verdict to take a job in California, said he relied on the finding by the state Division of Criminal Investigation that the fire was an arson as a key factor in making his decision.

John Maloney's family believes Sandy Maloney may have died when she accidentally set her couch on fire after a night of heavy drinking, possibly after unsuccessfully trying to hang herself.

Her mother, Lola Cator of Madison, continues to believe her former son-in-law is guilty.

"No way was it accidental," Cator said Sunday. "I knew the minute I went in that house. The fire and who killed her - I knew it was John."

The prosecution was handled by Joseph Paulus, the former Winnebago County district attorney now facing investigations into whether he committed misconduct during his 14 years in office. Zakowski appointed Paulus as special prosecutor in the case to avoid the appearance of conflict of interest, since his office works closely with the Green Bay Police Department.

Schmunk said it was Paulus' job to ensure he had all the relevant information, and he is "distressed" to know key information was kept from him.

"I've always felt that it was definitely a departure from the norm that I was kept at arm's length in this (Maloney) investigation," Schmunk said. Schmunk said he "gave them the benefit of the doubt" by assuming that Paulus wanted him to reach an independent decision.

"Medical examiners have to trust the law enforcement officers implicitly in things like this," Schmunk said. "If that situation breaks down, you could get some very improper conclusions about the case."

Added Schmunk: "If Mr. Paulus was withholding information willingly from me, that calls into question not only the ruling from the medical examiner perspective, but also his investigation."

Paulus' attorney, Franklyn Gimbel, last week attributed the growing questions about Paulus' performance as a prosecutor to a "feeding frenzy," calling them "a load of crap, as far as I know."

Maloney's attorney, Lew Wasserman, said if Schmunk reverses his ruling, he will file a motion in Brown County Circuit Court to vacate Maloney's guilty verdict.

"Failing to turn over information to the medical examiners in this case so they reached one conclusion, and one conclusion only, is clearly prosecutorial misconduct," Wasserman said.

Maloney's case currently is on appeal at the Wisconsin Court of Appeals. Wasserman's motion challenges the legality of a surreptitiously taken videotape the prosecution portrayed as a confession by Maloney. Maloney and his supporters say his statements in the tape are taken out of context to make them appear to be a confession.

Last week, Madison attorney Stephen Meyer said he's been hired by the state attorney general's office to conduct an independent examination into how the Maloney case was handled. DCI, the investigative arm of the attorney general's office, handled most of the investigation into Sandy Maloney's death. Meyer said the attorney general's office felt an independent review of the case was needed.

The FBI has been investigating Paulus for nearly two years since allegations surfaced that he went easy on defendants who paid cash to at least one local attorney. Paulus' successor, Winnebago County District Attorney Bill Lennon, also said last week that he might seek an investigation into "dozens and dozens" of complaints about prosecutorial misconduct lodged against Paulus since Lennon took office in 2003.

Maloney's sister, Gin Maloney, said she told her brother of the independent investigation late last week. She said he didn't say much, but he was "pretty emotional." Maloney, 47, is serving a life sentence at Dodge Correctional Institution in Waupun.

One of his three sons, Matt, 19, said Sunday that he's relieved someone is finally taking a hard look at his father's case.

"There's the feeling in the bottom of my stomach that I shouldn't get too excited," Matt Maloney said. "(But) I think something good is going to happen.

"I think when somebody looks at everything they would reach the same conclusion - that the fire and the death was accidental, and that my dad should not be in prison for a crime that never happened."

Contact Dee Hall at dhall@madison.com or 252-6132.

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